Southern Industrial Institute v. Hellier

TYSON, J. The trial court, it appears, excluded the testimony of the witness Langley because not in rebuttal, but was part of the defendant’s original case. In this tliere was no error. The evidence sought to be elicited from this witness was for the purpose of showing that defendant was entitled to certain credit upon the account sued upon. In other Avords, to show a payment upon the account by defendant under its plea of payment. After the plaintiff made out a prima facie case, Avhioh he did by testifying that the account introduced in evidence Avas correct the burden was upon the defendant to establish his plea of payment, and this it ought to have done before plaintiff offered his evidence in rebuttal. Whether he should have been permitted to do so after plaintiff had closed his testimony in rebuttal, Avas Avithin the discretion of the trial court and not revisable. There was evidence that Mrs. Hellier, during the fall of 1901, while plaintiff was sick, taught for'him and in his stead; that she was not employed by defendant during that period as a teacher. It was open to the jury to find that defendant accepted her services in lieu of her [689] husband’s, tlie plaintiff, and that he was to receive the compensation for those services under his contract of employment, just as though he had rendered them himself. Charge 1 was, therefore, properly refused. The plaintiff testified that the salary earned by Mrs. Hellier as teacher during the session 1900-01, which Is comprised in one of the items of the account sued .on, belonged to him. The credibility of this testimony was for the determination of the jury and not for the court.. Charge 2, requested by defendant, was therefore improper. Charge 3 refused to defendant is not intelligible. And, indeed, cannot be made so without a change in its phraseology, which, of course, we are not authorized to do. Charges must be given or refused in the terms in which they are written. — § 3328 of Code. We are unwilling to affirm that the court should have granted the motion for a new trial. Affirmed. McClellan, C. j., Simpson and Anderson, J. J., concurring.